Sharp v. Kansas City Cable Ry. Co.
| Decision Date | 02 July 1892 |
| Citation | 20 S.W. 93,114 Mo. 94 |
| Court | Missouri Supreme Court |
| Parties | SHARP v. KANSAS CITY CABLE RY. CO.<SMALL><SUP>1</SUP></SMALL> |
Appeal from circuit court, Jackson county; R. H. FIELD, Judge.
Action by A. W. Sharp against the Kansas City Cable Railway Company to recover damages for personal injuries. Judgment for defendant, and plaintiff appeals. Reversed.
Hollis & Hamner, for appellant. Johnson & Lucas, for respondent.
This was a suit to recover damages for injuries sustained by the plaintiff in February, 1888, while a passenger on defendant's road. The appeal is prosecuted by the plaintiff from a verdict and judgment in favor of the defendant. The defendant owns and operates a cable street railroad from Union avenue, in Kansas City, eastward. The tracks at Union avenue rest upon trestle work some 30 feet above the ground. From there east to Jefferson street, a distance of about a quarter of a mile, there is a steep up grade. Plaintiff took passage at Union avenue on a train composed of a grip car and a coach. When the train was within 100 feet of Jefferson street, the grip broke at the shank, and the train ran back down the hill. The evidence shows that there were two brakes on the grip car, — one an automatic brake, to be applied to the car wheels, and the other a rail brake, which applied blocks of wood to the track rail, — both operated by the gripman. The coach had two brakes, also, operated by the conductor and a hill brakeman. The grip shank runs in a slotted rail, and is subject to constant friction, and has chafing irons attached to keep it from wearing away. There is no dispute as to the above facts. The plaintiff's evidence tends to show that the chafing irons had been removed from the grips on all the cars a short time before this accident, because the cold weather caused the slot to close to some extent. The gripman says he applied his brakes as soon as the grip shank broke, but they did not hold the cars; that he knows the blocks on the rail brake were worn from the fact that the lever went over too far. Some of the plaintiff's witnesses say the train ran down the hill at the rate of 30 to 50 miles per hour. The plaintiff did not testify in his own behalf, and it does not clearly appear where he left the train, or whether he jumped off or was thrown off. We infer he jumped off before it reached the bottom of the incline. He received severe injuries. A Mr. Carr, a witness for plaintiff, says he was in the grip car; that something broke, and he stepped off; that he followed the train down the hill, and on his way met a number of passengers and two of the employes. He thinks these employes belonged to this train, and that one was the gripman and the other the hill brakeman. He says he met these employes more than a hundred feet from the place where the cars stopped. The evidence for the defendant is to the effect that the grips and brakes used by the defendant were the best that had then been devised; that the grips were made of soft steel; that freezing weather has a tendency to make steel brittle and liable to break, and there is no known remedy; that the grips and brakes were inspected daily; that the brakes on these cars were all in good condition at the time of, and were found to be in good condition just after, the accident. The hill brakeman testified that all the brakes were applied as soon as the grip broke; that it was freezing and thawing, and raining and sleeting, making the track slippery; that the train slid down the hill gradually, at a rate not exceeding 10 miles per hour; that he and the conductor notified the passengers in the coach several times to remain in their seats, and they would be safe; and that he remained at his post until the car stopped. The evidence of the gripman is that he remained at his proper place, and it seems the conductor was on the car when it reached the bottom of the incline.
1. The trial court allowed nonprofessional witnesses to give their opinions that plaintiff's mind was seriously and injuriously affected by the accident, but at first refused to allow them to recite the facts upon which they based their opinions. At a later stage of the trial these witnesses were recalled, and were permitted to state the facts. A nonprofessional witness may give his opinion as to the mental condition of another, in connection with a recital of the facts upon which he bases his conclusion. This is the well-settled law in this state. Crowe v. Peters, 63 Mo. 429; Moore v. Moore, 67 Mo. 192; Appleby v. Brock, 76 Mo. 314. But the value of such opinion depends wholly upon the opportunity the witness has had to observe the conduct of the person whose mind is in question and upon the incidents actually observed. These circumstances should be stated — First, to make the opinion competent as evidence; and, second, to enable the jury to estimate the value of the opinion. Indeed, a nonprofessional witness may relate the facts without expressing any opinion at all, leaving it to the jury to draw the conclusion, with or without the aid of experts. The court erred in the first instance in excluding the offered evidence, but, as the witnesses were recalled and permitted to testify, the error was corrected, and therefore constitutes no ground for reversal.
2. At the close of all the evidence the plaintiff asked a number of instructions, some of which were given and others were refused. The bill of exceptions shows that the court suggested to counsel for the plaintiff that, if he would prepare and ask certain instructions, they would be given. Counsel prepared and asked the instructions, and they were given. The complaint is now made that in this way the trial court, in effect, compelled the plaintiff to adopt its theory of the case or go to the jury without instructions. This court cannot listen to such complaints. The attorney for the plaintiff had a right, and it was his duty, to prepare and ask instructions...
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